The administration of justice, including, the law enforcement...agencies in full conformity with applicable standards contained in International Human Rights Instruments, [is] essential to the full and non- discriminatory realization of human rights and indispensable to the processes of democracy and sustainable development. --Vienna Declaration and Programme of Action
Through this petition under Section 491, Cr.P.C. the Petitioner sought recovery of his son Muhammad Adeel from the alleged illegal custody of Respondent No. 3 (SHO, Police Station Safdarabad, District Sheikhupura). This Court deputed a bailiff who has produced him today. He has also submitted his report which is placed on record.
2. According to the bailiff, on 20.1.2021 at 9:30 p.m. he raided Police Station Safdarabad and found Muhammad Adeel confined in the lock-up. On his query he told him that on 11.1.2021 at about 3:00 p.m. the Manawala Police arrested him from his shop, kept him for a day and then shifted him to Police Station Safdarabad Adeel further said that the police had not produced him before any Court of law and also complained of torture. The bailiff states that when he confronted the Moharrar, Nazim Ghaffar, he said that Adeel was arrested only 11/2 hour ago in case FIR No. 22/2021 dated 14.1.2021 registered under Section 392, PPC and would be produced before the magistrate in due course. The bailiff checked the Roznamcha (Daily Diary) but there was no entry regarding his arrest. Importantly, Adeel was not nominated in the said FIR.
3. The police officers present in the Court have not controverted the bailiff's report.
4. The right to liberty and security is sacrosanct and the international human rights law obligates the States to scrupulously protect it. Indeed, "without an efficient guarantee of the liberty and security of the human person, the protection of other individual rights becomes increasingly vulnerable and often illusory."[1] The Office of the United Nations High Commissioner for Human Rights (OHCHR) states: "All human beings have the right to liberty and security. Irrespective of their treaty obligations, all States are bound by international law to respect and ensure everybody's right to liberty and security of the person (universal legal responsibility). The notion of 'security' also covers threats to the personal security of non-detained persons. States cannot be passive in the face of such threats, but are under a legal obligation to take reasonable and appropriate measures to protect liberty and security of person."[2]
5. The Universal Declaration of Human Rights (UDHR), the "milestone document that proclaims the inalienable rights which everyone is entitled to as a human being -- regardless of race, colour, religion, sex, language, political or other opinion, national or social origin, property, birth or other status"[3]-- contains a number of articles which are particularly relevant for law enforcement.
These include: Article 3 (everyone has the right to life, liberty and security of person); Article 5 (no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment; Article 7 (all are equal before the law and are entitled without any discrimination to equal protection of the law); Article 9 (no one shall be subjected to arbitrary arrest and detention); Article 11(1) (everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which they have had all the guarantees necessary for their defence) Article 19 (everyone has the right to freedom of expression and opinion); and Article 20 (everyone has the right to freedom of peaceful assembly and association, and no one may be compelled to belong to an association).
6. There are various global and regional human rights conventions which secure right to liberty and security to individuals. Pakistan has ratified seven of nine core human rights conventions which include: the International Covenant on Civil and Political Rights (ICCPR), International Covenant on Economic, Social and Cultural Rights (ICESCR), International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), Convention on the Rights of the Child (CRC), Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), and the Convention on the Rights of Persons with Disabilities (CRPD):
7. According to the OHCHR, arrests and detentions are lawful under the international human rights law if they are (a) carried out in accordance with both formal and substantive rules of domestic and international law, including the principle of non-discrimination; and (b) free from arbitrariness, in that the laws and their application must be appropriate, just, foreseeable/predictable and comply with due process of law.[4]
8. The United Nations has drawn a number of documents[5] that are directly relevant to criminal justice and set out several important principles and prerequisites for the humane performance of law enforcement functions. These include:[6] Every law enforcement agency should be representative of, and responsive and accountable to, the community as a whole The effective maintenance of ethical standards among law enforcement officials depends on the existence of a well- conceived, popularly accepted and humane system of laws Every law enforcement official is a part of the criminal justice system, the aim of which is to prevent and control crime, and the conduct of every official has an impact on the entire system Every law enforcement agency should discipline itself to uphold international human rights standards and the actions of law enforcement officials should be open to public scrutiny Standards for humane conduct of law enforcement officials lack practical value unless their content and meaning become part of the creed of every law enforcement official, through education and training and through monitoring.
9. Amnesty International has prepared a document entitled "10 Basic Human Rights Standards for Law Enforcement Officials[7]on the basis of the United Nations law enforcement, criminal justice and human rights standards which is intended to serve as a guideline for the training and monitoring of the conduct of police officials. These standards are:
(1) Everyone is entitled to equal protection of the law, without discrimination on any grounds, and especially against violence or threat. Be especially vigilant to protect potentially vulnerable groups such as children, the elderly, women, refugees, displaced persons and members of minority groups.
(2) Treat all victims of crime with compassion and respect, and in particular protect their safety and privacy.
(3) Do not use force except when strictly necessary and to the minimum extent required under the circumstances.
(4) Avoid using force when policing unlawful but non-violent assemblies. When dispersing violent assemblies, use force only to the minimum extent necessary.
(5) Lethal force should not be used except when strictly unavoidable in order to protect your life or the lives of others.
(6) Arrest no person unless there are legal grounds to do so, and the arrest is carried out in accordance with lawful arrest procedures.
(7) Ensure all detainees have access promptly after arrest to their family and legal representative and to any necessary medical assistance.
(8) All detainees must be treated humanely. Do not inflict, instigate or tolerate any act of torture or ill-treatment, in any circumstances, and refuse to obey any order to do so.
(9) Do not carry out, order or cover up extra-judicial executions or "disappearances", and refuse to obey any order to do so.
(10) Report all breaches of these Basic Standards to your senior officer and to the office of the public prosecutor. Do everything within your power to ensure steps are taken to investigate these breaches.
10. The Constitution of Islamic Republic of Pakistan, 1973 (the "Constitution"), contains extensive provisions for human rights protection, including those under discussion. Article 4 stipulates that every citizen, wherever he may be, and every other person for the time being in Pakistan has an inalienable right to enjoy the protection of law and to be treated in accordance with law. In particular, no action detrimental to his life, liberty, body, reputation or property shall be taken except in accordance with law. Then, Article 9 commands that no person shall be deprived of life or liberty save in accordance with law and Article 10 provides safeguards as to arrest and detention.
Clause (1) of Article 10 enjoins that no person who is arrested shall be detained in custody without having informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult and to be defended by a legal practitioner of his choice. Clause (2) thereof says that every person arrested and detained in custody shall be produced before a- magistrate within twenty-four hours of such arrest, excluding the time necessary for the journey from the place of arrest to the Court of the nearest magistrate. The clause further declares that no such person shall be detained in custody beyond the said period without the authority of a magistrate. Clause (3) of Article 10, however, provides that clauses (1) and (2) shall not apply to any person who is arrested or detained under any law providing for preventive detention. Clause (9) adds that the provisions of Article 10 do not apply to enemy aliens. Protection against arbitrary arrest and detention is also a part of the right to fair trial and dignity guaranteed by Articles 10A[8] and 14 respectively. Articles 9, 10, 10A and 14 are contained in Part-II Chapter-I of the Constitution which relates to Fundamental Rights.
11. Notwithstanding the safeguards contained in the Constitution and other laws, the fact remains that the police abuse their power of arrest quite frequently.
12. There is tension in the societal interest in peace and law enforcement on the one hand and the fundamental rights of an individual/accused on the other. Hence, the question as to how to balance them. Lewis Mayers writes:[9] "To strike the balance between the needs of law enforcement on the one hand and the protection of the citizen from oppression and injustice at the hands of the law-enforcement machinery on the other is a perennial problem of statecraft."'
13. The US Supreme Court settled the issue in Miranda v. Arizona, 384 US 436 (1966), holding as under: "A recurrent argument made in these cases is that society's need for interrogation outweighs the privilege. This argument is not unfamiliar to this Court. See, e.g., Chambers v. Florida, 309 U. S. 227, 240-241 (1940). The ... Constitution has prescribed the rights of the individual when confronted with the power of government when it provided in the Fifth Amendment that an individual cannot be compelled to be -a witness against himself. That right cannot be abridged. As Mr. Justice Brandeis once observed: 'Decency, security and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperiled if it failed to observe the law scrupulously. Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law; it invites. every man to become a law unto himself; it invites anarchy. To declare that, in the administration of the criminal law, the end justifies the means ... would bring terrible retribution.
Against that pernicious doctrine this Court should resolutely set its face.' "
14. In England, the Parliament has enacted the Police and Criminal Evidence Act, 1984, based on the report of Sir Cyril Philips Committee (Report of a Royal Commission on Criminal Procedure, Command-Papers 8092 of 1981) to streamline the police powers of arrest, detention and interrogation.
15. The Supreme Court of India dilated on the power of the police to arrest in Nandini Satpathy v.
P.L. Dani (AIR 1978 SC 1025 at page 1032) and held that the rights of the accused should not be overstated. It observed that thinking is changing even in the United States and the Courts are more inclined to protect the society's interests. Therefore, it ruled: "Our constitutional perspective has ... to be relative and cannot afford to be absolutist, especially when torture technology, crime escalation 'and other social variables affect the application of principles in producing humane justice." In Joginder Kumar v. State of U.P. (AIR 1994 SC 1349) the Supreme Court held that the police could not be permitted to abuse their powers. Relevant excerpt is reproduced below: "The horizon of human rights is expanding. At the same time, the crime rate is also increasing. Of late, this Court has been receiving complaints about violation of human rights because of indiscriminate arrests. How are we to strike a balance between the two? A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively, of simply deciding what is wanted and where to put the weight and the emphasis; of deciding which comes first - the criminal or society, the law violator or the law abider ..."
The Court further held: "No arrest can be made because it is lawful for the police officer to do so. The existence of the power of arrest is one thing and justification for the exercise of it is another. No arrest should be made without a reasonable satisfaction reached after some investigation about the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even as to the need to effect arrest. Denying a person his liberty is a serious matter."
At page 1354 the Court laid down certain procedural requirements and directed the police to fulfil them when making arrests.
16. In D. K. Basu v. State of West Bengal (AIR 1997 SC 610) the Supreme Court said that freedom of an individual must yield to the security of the State. However, it added that the action of the State must be "right, just and fair." It should ensure that its law enforcement agencies do not transgress their limits. In order to bring transparency and accountability in the matters of arrest the Court issued various directions. It also desired that the officer arresting a person should prepare a memo. of his arrest which shall be attested by a member of his family or a respectable person of the place where the arrest is made. The memo shall record the date and time of arrest and would be countersigned by the person arrested. The Parliament has given these directions its imprimatur and inserted Sections 41A to 41D in the Code of Criminal Procedure, 1973.
17. In Pakistan, as already discussed, the Constitution protects life, liberty, dignity and other basic human rights of the people. There are a number of statutory instruments in the field to achieve the constitutional goals. The most important among them are the Code of Criminal Procedure, 1898 (Cr.P.C.), the Police Order, 2002, the Police Rules, 1934. Our Courts have consistently held the police that there can be no excuse for illegal detention. Even where a person is accused of a cognizable offence, the police should not arrest him unless there is some incriminating evidence. In Khizer Hayat and others v. Inspector-General of Police (Punjab), Lahore and others (PLD 2005 Lahore 470) a Full Bench of this Court held: "All the statutory provisions and the precedent cases mentioned above manifestly point towards the intention of the law that a suspect is not to be arrested straightaway upon ,registration of an F.I.R. or as a matter of course and that, unless the situation on the ground so warrants, the arrest is to be deferred till such time, that sufficient material or evidence becomes available on the record of investigation prima facie satisfying the investigating officer regarding correctness of the allegations levelled by the complainant party against such suspect or regarding his involvement in the crime in issue. If the law itself requires an investigating officer to be generally slow in depriving a person of his liberty on the basis of unsubstantiated allegations then insistence by the interested complainant party regarding his immediate arrest should not persuade the investigating officer to abdicate his discretion and jurisdiction in the matter before the whims or wishes of the complainant party."
18. The Hon'ble Supreme Court of Pakistan approved the above statement of law in a number of cases, including Sarwar and others v. The State and others (2014 SCMR 1762) and Mst. Sughran.
Bibi v. The State (PLD 2018 SC 595). More recently, in Shahzada Qaiser Arfat alias Qaiser v. The State and another (PLD 2021 SC 708) it reiterated: "No doubt, a police officer has, under Section 54 of the, Cr.P.C., the power to arrest a person who has been involved in any cognizable offence or against whom a complaint has been made or credible information has been received or a reasonable suspicion exists of his having been so concerned. Having the power to arrest is one thing but the justification for the exercise of that power is quite another. A police officer that makes arrest of a person must be able to justify the exercise of that power in making the arrest apart from his having the power to do so. He cannot make arrest of a person, only because he has the power to do so. He must also show sufficient grounds for making the arrest. Article 4(1)(j) of the Police Order, 2002 states this legal position when it prescribes that it is the duty of every police officer to 'apprehend all persons whom he is legally authorized to apprehend and for whose apprehension sufficient grounds exist'. And Rule 26.1 of the Police Rules, 1934 explains this by providing that the authority given under Section 54 of the, Cr.P.C. to the police to arrest without a warrant is permissive and not obligatory. As per the said Rule whenever escape from justice or inconvenient delay in completion of the investigation or commencement of the trial is likely to result from. the police failing to arrest, they are bound to do so, but in no other cases. 'Ordinarily no person is to be arrested straightaway only because he has been nominated as an accused person in an FIR or in any other version of the incident brought to the notice of the investigating officer by any until the investigating officer feels satisfied sufficient exists for his arrest.' The investigating officers should not mechanically make the arrest of a person accused of having committed a cognizable offence, rather they must exercise their discretion in making the arrest of such person judiciously by applying their mind to the particular facts and circumstances of the case and consciously considering the question what purpose will be served and what object will be achieved by arrest of the accused person?"
19. Abuse of power by any authority cannot be tolerated much less by the police. In some cases[10] where illegal detention was established our Courts ordered the police official concerned to pay compensation to the detenue.
20. One of the reasons for continuous complaints against the police regarding illegal detention and arbitrary arrests is lack of adherence to some of the important legal provisions. In Muhammad Tariq v. Station House Officer, Police Station Saddar Jampur and another (2019 PCr.LJ 1403) this Court noticed that after the introduction of the On-line System the police had abandoned the practice of maintaining manual Daily Diary (Roznamcha)[11] at the police stations which was wrong. Accordingly, it directed them to maintain simultaneous record. In Mst. Khatoon Bibi v. The State and 2 others (2021 PCr.LJ 593) this Court inter alia directed that: (i) all police stations shall maintain Diaries in accordance with Rule 22.48 of the Police Rules, 1934, and Article 167 of Police Order, 2002; (ii) immediately after the police take a person into custody, they shall furnish him the grounds of his arrest in accordance with Article 10 of the Constitution; and (iii) inspections of all police stations should be conducted in terms of Chapter-XX Rule 5 of the Police Rules, 1934.
21. Section 62, Cr.P.C. requires the officer in-charge of the police station to report the cases of all persons apprehended without a warrant to the District Superintendent of Police etc. irrespective of the fact whether they have been admitted to bail or not. Rule 12(ii) of Chapter 11-B Volume III of the Lahore High Court Rules and Orders enjoins that an accused person should not be removed to a place which is either inaccessible or unknown to his friends or counsel. Further information regarding his place of confinement should at all times be given to his friends on their application.
And lastly, the prisoner should be informed that he is entitled to have the assistance of his counsel and to communicate with his relatives and friends. These provisions are formidable safeguards against police excesses. It is, therefore, ordered that these should be strictly followed in addition to the directions issued by this Court in the cases of Muhammad Tariq and Khatoon Bibi, supra. The Inspector General of Police, Punjab, is also directed to take all necessary steps at his end to ensure that his officers act in accordance with the international legal standards in the performance of their duties, including matters of arrest and detention (unless they are inconsistent with any law for the time being in force), and the delinquents are disciplined or prosecuted as appropriate regardless of rank.
22. In the instant case, on 20.01.2021 when the bailiff went to Police Station Safdarabad under the order of this Court, he found Muhammad Adeel confined in the lock-up but there was no entry regarding his arrest in the Daily Diary. Akram/Inspector and Asghar/ASI, who have appeared before this Court, claim that Adeel was arrested in case FIR No. 22/21 dated 14.1.2021 registered under Section 392, PPC but they have not denied that it is not recorded in the Daily Diary. Importantly, Adeel is not named in the said FIR. In the circumstances, malafides on the part of the police and possibility of abuse of powers by them cannot be ruled out. The Respondent DPO shall hold an inquiry and submit report to this Court through the Deputy Registrar (Judicial).
23. In the meanwhile, I am inclined to admit the said Muhammad Adeel to bail in case FIR No. 22/21, supra, subject to his furnishing bail bond in the sum of Rs. 100,000/- (Rupees one hundred thousand) with one surety in the like amount to the satisfaction of the Deputy Registrar (Judicial) of this Court. This petition stands disposed of.
24. Above are the reasons for the short order dated 21.1.2021 passed in the instant petition.
1. Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyers. <resourcecentre.savethechildren.net/node/11357/pdf/hurnan_rights_ training_manual.pdf>
2. ibid.
3. https://www.un.org/en/observances/human-rights-day
4. See note 1.
5. The UN Code of Conduct for Law Enforcement Officials; the UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials; the UN Standard Minimum Rules for the Treatment of Prisoners (the Mandela Rules); and the UN Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment.
6. 10 Basic Human Rights Standards for Law Enforcement Officials, Amnesty International (December 1998). <https://www.amnesty.org/download/Documents/156000/pol300041998en.pdf>
7. Ibid.
8. Shahzada Qaiser Arfat alias Qaiser v. The State etc. (PLD 2021 SC 708).
9. Quoted by the Supreme Court of India in Nandini Satpathy v. P.L. Dani (AIR 1978 SC 1025)
10. See, for example: Rana Muhammad Aslam v. Azmat Bashir and others (2011 SCMR 1420); Mazharuddin v. The State (19923 PCr.LJ 1035); All Ahmed v. Muhammad Yakoob Almani, Deputy Superintendent of Police, Qasimabad, Hyderabad and 5 others (PLD 1999 Karachi 134); and Tahir Mahmood Gujmjar, D.S.P., C.I.A., Gujranwala v. The State and 3 others (PLD 2020 Lahore 703).
11. Register No. II prescribed by Rule 22.48 of the Police Rules, 1934.